The Cable

Iran Talks On the Rocks As Two Sides Needle Each Other

GENEVA - U.S. and Iranian diplomats failed to meet at the negotiating table together Thursday. Top Iranian and Western officials are trading public barbs. And back in Washington, senators conspired to impose another round of sanctions on Tehran. It's all raising fears that the historic nuclear deal which seemed so close just a few days ago might be slipping away.

Wendy Sherman, the chief American nuclear negotiator held a brief meeting Wednesday night with Iranian Foreign Minister Javad Zarif, but a senior State Department official said that Catherine Ashton, the European Union's top diplomat, was the only leader to hold direct and formal talks with the Iranians Thursday at the high-end Intercontinental Hotel here.

The State Department official said leaders from the so-called P5+1 -- the U.S., Britain, Germany, France, Russia and China -- held bilateral talks throughout the day and stressed that Ashton was negotiating on behalf of the entire group. Despite the darkening atmosphere, it's too soon to conclude that the talks are unraveling. The current talks are designed to freeze -- or at least slow -- Iran's nuclear program for roughly six months while the two sides work towards a comprehensive agreement. The U.S. and its allies would give Tehran access to roughly $7 billion in frozen assets as part of any interim deal. Privately, two Western officials said Thursday's talks had been fairly productive and that there was still a decent chance of a deal. The officials said Iran might have been posturing to show their domestic audience back home that they were taking a hardline with the P5+1 rather than simply agreeing to every Western demand.

Still, the lack of any direct contact between American and Iranian negotiations on the second day of what is supposed to be a three-day conference was striking. American officials say the talks can be extended through the weekend if a deal was close at hand, but the talks could also come to an abrupt halt Friday if the remaining differences between the two sides can't be bridged.

Publicly, at least, there were indications that the Iranians and their P5+1 counterparts were beginning to lose confidence in each other's willingness to make the concessions necessary to reach a deal.

Late Thursday night, a senior Iranian official offered a strikingly pessimistic assessment of the state of the talks. Iranian Deputy Foreign Minister Abbas Araqchi told Iranian reporters that there was no point inviting Kerry or other foreign ministers to Geneva until the two sides were close to an agreement.  Asked how the negotiations were going, Araqchi offered a blunt answer: "We haven't made any progress." EU officials were far more optimistic, with a spokesman for Ashton saying earlier that Thursday had been a "day of intense, substantive and detailed" negotiations, conducted in a "good atmosphere."  The differences between the two assessments suggest the two sides are far apart not just on the substance of the negotiations, but also on the far more basic question of whether they're advancing at all. 

Iranian Deputy Foreign Minister Abbas Araqchi told reporters that Tehran "cannot enter serious talks until the trust is restored." He quickly added that negotiations would continue, but the comments were unusually blunt for an experienced diplomat.

French Foreign Minister Laurent Fabius, meanwhile, told a French television station that he hoped a deal could be reached but stressed that any agreement "can only be possible based on firmness."

Fabius has consistently been one of the most hawkish of the P5+1 leaders, and his opposition to the draft text cobbled together during the previous round of talks earlier this month helped sink the deal. Fabius argued then that the agreement didn't do enough to reduce Iran's stockpiles of enriched uranium or to halt the construction of its Arak plutonium reactor. In his interview on French television, Fabius said that his position had now been adopted by the U.S. and the rest of the P5+1.

The public jabs come as Iranian leaders appeared to be hardening their public negotiating positions. On Wednesday, Iran's supreme leader, Ayatollah Ali Khamenei, called Israel a "rabid dog" and said his country had red lines in the talks that it was not willing to cross.

Iranian officials have long said that one of their red lines was a Western acknowledgement that the country had a "right" to continue enriching uranium, something the P5+1 countries have been unwilling to grant. Diplomats from both sides have suggested various ways of wording a compromise, but they haven't agreed on one yet.

Another sticking point is the future of Iran's stockpiles of near-weapons grade uranium. The P5+1 want Iran to halt its enrichment efforts and take clear steps to reduce its existing stores. Tehran has signaled that it might be willing to hold off on enriching any more of the uranium, but that it wasn't willing to give away any of the current stockpile.

Meanwhile, in Congress, the Obama administration's weeks-long effort to convince Senate leaders to hold off on a new round of sanctions appears to have succeeded. On Thursday, Senate Majority Leader Harry Reid (D-NV) opted not to include a new sanctions amendment to the 2014 Defense Authorization bill, much to the dismay of hawkish Senators. The decision ensures that there won't be a live debate on such an amendment during this week's delicate negotiations in Geneva -- a key White House demand. However, Reid did commit to voting on new sanctions after this week's talks.

"The Senate must be prepared to move forward with a new bipartisan Iran sanctions bill when the Senate returns after Thanksgiving recess. And I am committed to do so," Reid said.

Lawmakers adamant on ramping up sanctions against Tehran aren't satisfied.

"Now is the time for maximum pressure on the Iranian regime, before the only option left on the table is the military one," Sen. John Cornyn (R-TX) told The Cable in a statement. "Despite past promises, we are now hearing reports that the Administration intends to back off these much needed sanctions. I continue to push for the Senate to pass another round of sanctions, before we are left without any peaceful recourse."

Republicans aren't the only ones feeling heartburn over this week's talks. Top Senate aides tell The Cable that Democrats including Sen. Robert Menendez (D-NJ) and Sen. Chuck Schumer (D-NY) are working with Republican Senators Lindsey Graham (R-SC) and Mark Kirk (R-IL) on a plan to ramp up sanctions after the Thanksgiving recess. The lawmakers enlisted a bipartisan group of senators for a joint statement calling for the passage of immediate sanctions. "We will work together to reconcile Democratic and Republican proposals over the coming weeks and to pass bipartisan Iran sanctions legislation as soon as possible," read the statement.  Signatories included Ben Cardin (D-MD), Marco Rubio (R-FL), Bob Casey (D-PA), Chris Coons (D-DE), Susan Collins (R-ME), and Richard Blumenthal (D-CT) among others. One Senate aide said top Democrats were feeling intense pressure from pro-Israel constituents. "The Jewish community is freaking out about what the president is about to do and Menendez and Schumer are looking for cover," said the aide.

While the talks continue, hundreds of reporters from around the world are going to extreme lengths to get any morsel of news. On Wednesday night, more than a dozen Iranian reporters chased a senior administration official through the hallways of a nearby convention center following an evening briefing. One of the reporters stood on a glass coffee table in an attempt to get a photo of the U.S. official, but the glass shattered, sending him tumbling to the floor.

Reporters' haven't always gotten their prey, however. On Thursday night, Sherman, the chief U.S. negotiator, strode through the lobby of the Intercontinental without any of the Western or Iranian reporters seeming to notice. Many of the reporters had been there since the morning, trying to keep themselves awake with $11 coffees and $10 bottles of Coke Zero. By that point in the evening, they were simply fried.

The Cable

Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere

The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable.

The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week.

A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.

Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations."

But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.

In recent days, the United States circulated to its allies a confidential paper highlighting American objectives in the negotiations, "Right to Privacy in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and German text so "that references to privacy rights are referring explicitly to States' obligations under ICCPR and remove suggestion that such obligations apply extraterritorially." In other words: America wants to make sure it preserves the right to spy overseas.

The U.S. paper also calls on governments to promote amendments that would weaken Brazil's and Germany's contention that some "highly intrusive" acts of online espionage may constitute a violation of freedom of expression. Instead, the United States wants to limit the focus to illegal surveillance -- which the American government claims it never, ever does. Collecting information on tens of millions of people around the world is perfectly acceptable, the Obama administration has repeatedly said. It's authorized by U.S. statute, overseen by Congress, and approved by American courts.

"Recall that the USG's [U.S. government's] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights," the paper states. "So a paragraph expressing concern about illegal surveillance is one with which we would agree."

The privacy resolution, like most General Assembly decisions, is neither legally binding nor enforceable by any international court. But international lawyers say it is important because it creates the basis for an international consensus -- referred to as "soft law" -- that over time will make it harder and harder for the United States to argue that its mass collection of foreigners' data is lawful and in conformity with human rights norms.

"They want to be able to say ‘we haven't broken the law, we're not breaking the law, and we won't break the law,'" said Dinah PoKempner, the general counsel for Human Rights Watch, who has been tracking the negotiations. The United States, she added, wants to be able to maintain that "we have the freedom to scoop up anything we want through the massive surveillance of foreigners because we have no legal obligations."

The United States negotiators have been pressing their case behind the scenes, raising concerns that the assertion of extraterritorial human rights could constrain America's effort to go after international terrorists. But Washington has remained relatively muted about their concerns in the U.N. negotiating sessions. According to one diplomat, "the United States has been very much in the backseat," leaving it to its allies, Australia, Britain, and Canada, to take the lead.

There is no extraterritorial obligation on states "to comply with human rights," explained one diplomat who supports the U.S. position. "The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions."

The position, according to Jamil Dakwar, the director of the American Civil Liberties Union's Human Rights Program, has little international backing. The International Court of Justice, the U.N. Human Rights Committee, and the European Court have all asserted that states do have an obligation to comply with human rights laws beyond their own borders, he noted. "Governments do have obligation beyond their territories," said Dakwar, particularly in situations, like the Guantanamo Bay detention center, where the United States exercises "effective control" over the lives of the detainees.

Both PoKempner and Dakwar suggested that courts may also judge that the U.S. dominance of the Internet places special legal obligations on it to ensure the protection of users' human rights.

"It's clear that when the United States is conducting surveillance, these decisions and operations start in the United States, the servers are at NSA headquarters, and the capabilities are mainly in the United States," he said. "To argue that they have no human rights obligations overseas is dangerous because it sends a message that there is void in terms of human rights protection outside countries territory. It's going back to the idea that you can create a legal black hole where there is no applicable law." There were signs emerging on Wednesday that America may have been making ground in pressing the Brazilians and Germans to back on one of its toughest provisions. In an effort to address the concerns of the U.S. and its allies, Brazil and Germany agreed to soften the language suggesting that mass surveillance may constitute a violation of human rights. Instead, it simply deep "concern at the negative impact" that extraterritorial surveillance "may have on the exercise of and enjoyment of human rights." The U.S., however, has not yet indicated it would support the revised proposal.

The concession "is regrettable. But it’s not the end of the battle by any means," said Human Rights Watch’s PoKempner. She added that there will soon be another opportunity to corral America's spies: a U.N. discussion on possible human rights violations as a result of extraterritorial surveillance will soon be taken up by the U.N. High commissioner.

Follow me on Twitter: @columlynch.